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What’s Wrong with the Bill Cosby Jury?

As I’m sure you’re all aware, after years of lurid headlines in the media, Bill Cosby was accused and tried on several criminal counts of sexual assault. His trial is approaching the 10th day in Pennsylvania—with the jury unable to come to a decision. I worked for over 30 years as a criminal lawyer and tried over 100 jury trials. So, what’s wrong with the Bill Cosby jury? Why can’t they reach a decision?

Of course, we don’t know what’s going on inside the locked room where the jurors are deliberating the fate of Bill Cosby, but I can offer a few ideas from my own experience with juries over the years.

In a criminal case, there must be a unanimous verdict—meaning all twelve people must agree on guilty or not guilty. It could be that the jury here can’t reach the total number. Maybe 3,4, or more people disagree and won’t change their positions.

Bill Cosby was charged with several counts. It could be the jury has a unanimous decision about one or two of the counts, but can’t reach a decision on another count. (Each “count” is either a separate accusation against a separate victim, or could be an accusation against one victim but at different levels of seriousness. For instance, one count could be against one victim for unlawful touching, while the next count could be against the same victim but for unlawful sexual penetration—a different action that also carries different penalties)

The jury may be weighing the believability of the victim’s testimony—as they have repeatedly asked the judge to read portions of testimony from the trial. The standard they must use is “proof beyond a reasonable doubt.” They may be questioning the quality of proof to decide if it rises to a level beyond a reasonable doubt.

Juries are instructed not to take into account their emotional responses to either the accused or the victims—but this is often impossible. Maybe, some of the jurors feel sorry for Bill Cosby and are hesitant to find him guilty of everything he’s accused of doing.

In any event, what does this mean for both Bill Cosby and the alleged victims? In my experience, if the jury is unable to come to a decision after all this time, chances are that more time in a locked room, isn’t going to change their minds. The judge should rule the case is a “mistrial.” It means no decision was reached by the jury and it is dismissed. That doesn’t mean Bill Cosby is out of the woods. The prosecutor may re-charge the case and start another trial with a new jury.

I’ve experienced this and I can tell you—that’s tough and expensive for both sides. Everyone would like to see this jury reach a decision.